New Issues, Theories and Methods
Judicial Review and Cooperation series
Edited by Bruno de Witte, Juan A. Mayoral, Urszula Jaremba, Marlene Wind and Karolina Podstawa
Chapter 9: ‘Emulate thy neighbour?’ How dialogues between the CJEU and non-EU courts could be explained through international relations theory
This work aims to offer a different perspective on the perennial issue of legal transplants, cross-fertilization, borrowings and migrations which has been the comparative and EU law researchers’ delight for many years. Inside the Union, such norm transfers take place within the context of dialoguing whose main pivot is the preliminary reference procedure to the Court of Justice of the European Union (CJEU). The interaction between national courts and the CJEU in this procedure allows EU law (as interpreted by the Luxembourg court) to permeate the boundaries of domestic law. A number of studies have already examined the circumstances when national courts (fail to) refer to the CJEU or (fail to) apply CJEU interpretations in cases before them. Outside the Union, however, a different set of problems arise where no true equivalent reference procedure exists from non-EU courts. These circumstances thus call for a different perspective on the dynamics of legal interactions – based on CJEU norm interpretations – in the context of Europeanization of the non-EU judiciaries, one which can also comprehend a number of states in Europe which are parties to a variety of free trade agreements with the EU (EU-FTAs). By stepping beyond the purely legal sphere and using a constructivist approach from international relations literature (as explained below), this brief study attempts to provide an alternative explanation as to why courts outside the EU will follow or refuse to follow EU law interpretations by the CJEU.
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